STATE OF IOWA, Plaintiff-Appellant, vs. TOSHIKI ITOH, Defendant-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 0-089 / 09-0811
Filed April 21, 2010
STATE OF IOWA,
Plaintiff-Appellant,
vs.
TOSHIKI ITOH,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Douglas S.
Russell, Judge.
The State appeals from the district court‟s partial grant of the defendant‟s
motion to suppress. AFFIRMED.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney
General, Janet Lyness, County Attorney, Elizabeth Beglin, Assistant County
Attorney, and Allen Best, legal intern, for appellant.
Patricia C. Kamath, Iowa City, for appellee.
Heard by Sackett, C.J., and Doyle and Danilson, JJ.
2
SACKETT, C.J.
The State sought discretionary review of the district court ruling on the
defendant‟s motion to suppress. The State contends the court erred in finding
the defendant was in custody and in determining his request for counsel was
unequivocal.
It further contends the court erred in finding the defendant‟s
statements were involuntary and in not delineating what portion of the
suppressed interview would also be inadmissible to impeach the defendant. We
affirm.
I. Background.
On July 10, 2008, the University of Iowa Police Department received a call
from the complainant, who alleged the defendant had hit her repeatedly. During
a medical exam, she also alleged the defendant had touched her breast and
vagina repeatedly over the preceding two years.
Defendant is a medical doctor holding a Ph.D. in addition to an M.D.
degree from Kumamoto University in Kumamoto, Japan. He is qualified for a
general medical license to practice in Japan but not in the United States. At the
time of the alleged complaint defendant had been in the United States for about
ten years and at the University of Iowa as an assistant professor since 2005.
Defendant later was examined by a linguist who determined he had a
moderate proficiency in English but had gaps in his knowledge particularly in
non-scientific vocabulary and in unfamiliar situations his language broke down.
Investigators Meyer and Bringman arranged with the university for a
Japanese translator and interviewed the defendant at his workplace that same
3
day. They identified themselves as police officers, told the defendant his rights, 1
told the defendant he was “not under arrest now,” and recorded the interview.
On the morning of July 15 the investigators called the defendant at home
and asked him to meet with them at the University of Iowa Police Department.
He agreed and had his wife drop him off at the police station.
An officer escorted the defendant through a locked door into the secured
area of the office and to an interview room. The investigators again advised the
defendant of his rights.
translator was present.
The entire interview was recorded on video.
No
The interview started with questions about the
allegations of a physical altercation between the defendant and the complaining
witness, a misdemeanor. After the break in questioning we discuss in the next
paragraph, the questioning turned to allegations of sexual assault, a felony.
Throughout the interrogation, the defendant‟s responses, comments, and
questions indicate he believed this was an employment-related investigation.
After about forty minutes of questioning the defendant about alleged
altercations with the complainant, Meyer said: “All right. Well, you can go ahead
and go.
I think we pretty much got all of our questions answered so—.”
Bringman interjected: “I don‟t think we want to do that. Here, wait just a second
[gesturing].”
Meyer and Bringman stepped out of the interview room briefly.
When they returned, Bringman said “We have a couple more questions.” The
questioning then turned to the allegations of sexual touching. When asked if he
wanted to talk to the officers about it, the defendant said “no.” Bringman ignored
1
See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694,
722 (1966).
4
the defendant‟s response and continued the questioning.
The defendant
attempted to ask a question, but was repeatedly interrupted by Bringman to the
point the defendant said, “I‟m begging you.” Bringman listed three “yes-or-no”
questions for the defendant to answer. The interview continued:
A. Okay. That‟s all?
Q. That‟s all. We want you to be honest. We want your
side of the story. A. Okay. So—
Q. Okay. Just answer number one first. Did you touch her
breasts? A. I gonna ask (inaudible) one, two, three, but probably
it‟s not good to—to my side, right, if I actually talk? So probably I
need some representative for me. (Emphasis added.)
Q. That‟s fine. You don‟t have to talk to us if you don‟t want
to. That‟s your right. If you want to talk to an attorney, you have—
that‟s your right. We won‟t ask you any more questions. A. Okay.
Q. I just—I asked you the questions, you can give the
answer if you want, or you don‟t have to. I just wanted to get your
side of the story— A. Okay.
Q. —because we heard this, and we wanted to verify what
happened. A. Um-hum, I understand. Kind of your job.
Q Yes, we need— A. Actually—
Q. —to hear both sides. A. And then actually you write
actually correctly, actually for—correctly of report from the both side
opinion, or just actually the—summarize—
Q. We— A. —from the one side?
The questioning continued for another two hours and nineteen minutes.
The State charged the defendant with sexual assault in the third degree.
He moved to suppress statements made to the investigators during both
interviews. Following a hearing on the motion, including testimony about the
defendant‟s ability to understand and speak English, the district court denied the
motion to suppress as to the July 10 interview and the first part of the July 15
interview, but granted the motion as to all the defendant‟s statements following
his statement: “So probably I need some representative for me.”
The court
concluded that statement was an “unequivocal request for an attorney and the
5
interrogation should have stopped at that point.”
The court also concluded,
based on a review of the totality of the circumstances, “that a reasonable person
in the place of the defendant would have understood he was in custody” and that
after Bringman said, “I don‟t think we want to do that. Here, wait just a second”
that the defendant “had been told he was not free to leave.”
The district court listed more than two pages of quotes from the transcript
of the July 15 interview in support of its conclusions the defendant did not
understand what was going on. He did not recognize this was not a civil matter
dealing with his employment. He did not know what “charges” were. He did not
know what a trial was or that the county attorney was not the judge of the matter.
The court continued:
The overall impression the court got from viewing the July 15
interview tape was that the defendant‟s statements were not the
result of a knowing, voluntary, and intelligent waiver of his Fifth and
Sixth Amendment rights. His body language and gestures showed
his reluctance to talk. His statements that he did not want to talk
did not result in an end to questioning. His request for an attorney
did not result in an end to the questioning. If the officers had
listened to him more carefully, they would have understood he was
requesting an attorney and refusing, at times, to answer questions.
The officers used many standard interrogation techniques
including the common practices of lying to the defendant about the
facts, pretending to know more than they did, . . . using the good
cop/bad cop alternating questioning technique, manipulating the
defendant‟s ego and reputation, appealing to his conscience, trying
to get him to answer questions with a yes or no, and denying him
the chance to make explanations. They confronted defendant with
the evidence against him referring to the victim‟s side of the story
and the fictitious medical report of her condition. Their impatience
with the defendant prevented his making complete statements and
the defendant showed his frustration with this. The cumulative
effect of these techniques was to overbear defendant‟s will and
render his statements involuntary.
But the truly fatal flaws in the July 15th interrogation were
two. First, . . . the defendant asked for an attorney, and the
6
questioning did not cease. Second, . . . the officers made improper
promises of leniency. Lieutenant Hyche‟s offer to go to the county
attorney on the defendant‟s behalf was clearly an offer of help with
the county attorney in exchange for the defendant‟s confession
while the defendant believed the county attorney was the judge in
this case.
Dr. Itoh testified that after Officer Meyer told him he could
leave and Officer Bringman put up his hand and said, “Wait a
minute,” it was clear to him that he was not free to go. The
defendant was certain he was not free to go and certain that he had
requested an attorney. He also tried to stop the questions but was
unable to do so because of the pressure and pace of the officers‟
questioning and their apparent unwillingness to listen to what he
was saying.
The court ordered all statements after “So probably I need some
representative for me” suppressed from evidence.
The State sought
discretionary review, which the supreme court granted.
II. Scope of Review.
We review constitutional issues de novo. In assessing the
validity of a defendant‟s Miranda waiver, the State bears the heavy
burden of proving by a preponderance of the evidence that the
waiver was made knowingly, intelligently, and voluntarily without
intimidation, coercion, or deception. Our review of the record is de
novo, and we will make our own evaluation of the circumstances.
State v. Walls, 761 N.W.2d 683, 685 (Iowa 2009) (citations omitted).
“We
nevertheless give weight to fact findings because of the district court‟s
opportunity to assess the credibility of witnesses.” State v. Countryman, 572
N.W.2d 553, 557 (Iowa 1997). However, we are not bound by the district court‟s
findings. State v. Simmons, 714 N.W.2d 264, 271 (Iowa 2006).
III. Merits.
A.
Custodial Interrogation and Request for Counsel.
The State
contends the district court erred in finding that the defendant was in custody on
July 15 when he made incriminating statements and that his request for counsel
7
was unequivocal.
The State argues “any restraint the officers imposed on
defendant‟s freedom was insufficient to place him in custody.” The Supreme
Court held that a suspect is in custody after the suspect is formally arrested or
“otherwise deprived of his freedom of action in any significant way.” Miranda v.
Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706 (1966).
“A custody determination depends on objective circumstances, not the subjective
belief of the officers or the defendant.” State v. Bogan, 774 N.W.2d 676, 680
(Iowa 2009). “In determining whether a suspect is „in custody‟ at a particular
time, we examine the extent of the restraints placed on the suspect during the
interrogation in light of whether „a reasonable man in the suspect‟s position would
have understood his situation‟ to be one of custody.” State v. Ortiz, 766 N.W.2d
244, 251 (Iowa 2009) (quoting Berkemer v. McCarty, 468 U.S. 420, 442, 104
S. Ct. 3138, 3151, 82 L. Ed. 2d 317, 336 (1984)). We apply a four-factor test.
State v. Miranda, 672 N.W.2d 753, 759 (Iowa 2003). These factors are “„the
language used to summon the individual, the purpose, place and manner of the
interrogation, the extent to which the defendant is confronted with evidence of his
guilt, and whether the defendant is free to leave the place of questioning.‟”
Simmons, 714 N.W.2d at 274-75 (quoting State v. Smith, 546 N.W.2d 916, 922
(Iowa 1996)). We examine each factor in turn.
The Language Used to Summon the Individual. Investigator Meyer called
defendant on the phone and asked him to come to the University of Iowa police
department to talk about his case. Defendant agreed and had his wife drive him
to the police station. Meyer and Bringman had interviewed defendant a few days
8
earlier about allegations he struck a coworker during arguments on two different
days. He had been told by the university to expect an interview. We do not see
anything in the language used to summon defendant that a reasonable person
would perceive as summoning him to a custodial interrogation.
The Purpose, Place, and Manner of the Interrogation. When defendant
arrived at the police station, he had to wait to be admitted to the secured area of
the station. Investigator Meyer admitted the defendant through the door that
requires scanning a badge for entry and has a numeric keypad on the inside of
the door. He was escorted to an interview room in the secured area and seated
at a table with the two investigators, Meyer and Bringman. Defendant was given
the Miranda warnings at the beginning and indicated he understood. They gave
him no indication he was free to leave. Except when the investigators entered or
left the room, the door was kept closed. The questions went immediately to the
alleged assaults discussed in the prior interview. It is clear from the recording
that defendant thought the subject matter was the employment relationship with
the complaining witness and her job performance. The investigators repeatedly
told defendant they knew what had happened and had all the evidence, but just
wanted his side. They asked questions repeatedly until they got the answer they
wanted from the defendant. Sometimes they had to explain words he did not
understand.
The two investigators frequently interrupted defendant as he
attempted to explain answers.
Defendant‟s discomfort with the manner and
intensity of the interrogation is clear in the video.
9
After about forty minutes of questioning Meyer said: “All right. Well, you
can go ahead and go. I think we pretty much got all of our questions answered
so—” Bringman interjected: “I don‟t think we want to do that. Here, wait just a
second [gesturing].” Meyer and Bringman stepped out of the interview room
briefly. When they returned, Bringman said “We have a couple more questions.”
The questioning then turned to the allegations of sexual touching. The defendant
attempted to ask a question, but was repeatedly interrupted by Bringman. After
the defendant stated “So probably I need some representative for me” the
investigators acknowledged his statement and that he did not need to continue
answering questions, but then turned back to their “we just want your side of the
story” refrain. The interrogation continued for another two hours and nineteen
minutes.
Meyer and Bringman repeatedly confronted the defendant with the fact
they had all the evidence and knew what happened. Lieutenant Hyche soon
joined the interrogation, taking turns with one of the investigators.
At the
suppression hearing he testified his involvement was just to obtain a confession
from the defendant. He carried a piece of paper he said was a lab report that
contradicted what the defendant was saying about why he touched the
complaining witness.
The interrogators frequently required the defendant to
answer questions with yes or no and did not allow him to explain.
After the interrogators obtained what they considered to be a confession,
the told the defendant to write it down. It was not until he indicated he did not
understand what to do and needed some time to talk to an attorney that there is
10
any indication from the interrogators that the defendant could leave and complete
the written statement at another time.
The interrogation took place in an interview room inside the locked, secure
area of the police station. The questioning was intense and confrontational. The
defendant‟s stress and resultant difficulty understanding the questions and
answering them is apparent in the videotape. When the defendant was told he
could go, he immediately was stopped, told no, and told to wait. The questioning
quickly resumed. The defendant was confronted with photographs and what was
claimed to be a lab report as evidence of his guilt. He was told the “lab report”
proved his version of what happened was not true. The purpose, place, and
manner of the interrogation weigh heavily in favor of a custodial interrogation.
The Extent to Which the Defendant is Confronted with Evidence of Guilt.
As noted above, the officers repeatedly told the defendant they already knew
what happened.
He was shown photographs of injuries on the complaining
witness and told he caused them. He was confronted with a supposed lab report
that the interrogators said contradicted his account of examining the complaining
witness for an infection. This factor weighs in favor of custodial interrogation.
Whether the Defendant is Free to Leave. At the beginning of the interview
a reasonable person might have felt free to leave even though not expressly told
so. Once the defendant was told to wait, instead of being free to go, however,
the circumstances weigh heavily in favor of the interrogation being custodial in
the mind of a reasonable person even though there was no physical restraint.
The Miranda opinion holds that a suspect is in custody upon formal arrest or
11
under any other circumstances where the suspect is deprived of his or her
freedom of action in any significant way. Miranda, 384 U.S. at 444, 86 S. Ct. at
1612, 16 L. Ed. 2d at 706; but see Countryman, 572 N.W.2d at 558 (finding no
custody in the absence of physical restraint).
From our review of the recordings and applying the factors in Simmons,
714 N.W.2d at 274-75, we determine a reasonable person in the defendant‟s
position “would have understood his situation to be one of custody.” Ortiz, 766
N.W.2d at 251. The Miranda warnings were required and were given. We turn
next to the defendant‟s statement regarding counsel.
Was the Statement an Unequivocal Request? The State contends the
defendant‟s statement, “So probably I need some representative for me” was not
an unequivocal request for counsel and was insufficient to invoke his right to
counsel. It cites cases from a variety of jurisdictions around the country in which
courts have found statements using “probably” not to be unambiguous requests
for an attorney. The State focuses on the word “probably” and argues the district
court erred in determining the word was a “hesitation word” entitled to no
meaning. The defendant repeatedly uses “actually” as a hesitation word like a
native speaker might use “um” or “uh.”
From our review of the recordings,
however, we do not find support for the district court‟s conclusion concerning
“probably.”
This does not automatically mean the defendant‟s inclusion of
“probably” in his statement makes it equivocal or ambiguous.
When we review the totality of the circumstances and view the statement
in context, we conclude the defendant, as much as he understood the nature of
12
the interview and his right to counsel, was indicating he should have a
“representative” for himself and it was “not good to—to my side, right, if I actually
talk.” Bringman understood the defendant‟s statement, because he immediately
responded with assurances the defendant didn‟t have to talk to them, it was his
right to talk to an attorney, and “we won‟t ask you any more questions.” The
defendant said “okay,” but Bringman then resumed the questioning. The State
characterizes the investigator‟s remarks as Bringman essentially choosing to give
defendant another Miranda warning.
The defendant‟s remark here is stronger than the defendant‟s question in
State v. Johnson, 318 N.W.2d 417, 430 (Iowa 1982), whether he should have an
attorney.
There the supreme court concluded the defendant “manifested
indecision as to whether he desired counsel.” Johnson, 318 N.W.2d at 431. In
the circumstances before us, defendant indicated it was “not good” for him to talk
to the police and he probably should have a representative. Taken together, the
request is stronger than “maybe I should talk to a lawyer” that was found to be
equivocal by the Supreme Court. Davis v. United States, 512 U.S. 452, 462, 114
S. Ct. 2350, 2357, 129 L. Ed. 2d 362, 373 (1994).
The defendant made
statements “that can reasonably be construed to be an expression of a desire for
the assistance of an attorney.” Id. at 459, 114 S. Ct. at 2355, 129 L. Ed. 2d at
371 (citation omitted). We do not believe that “a reasonable officer in light of the
circumstances would have understood only that the suspect might be invoking
the right to counsel.” Id. (emphasis in original). The district court aptly observed,
“If the officers had listened to him more carefully, they would have understood he
13
was requesting an attorney and refusing, at times, to answer questions.” That
observation is supported by the evidence before us and we agree with the district
court. We conclude the questioning should have stopped once the defendant
requested a “representative.”
The circumstances here also demonstrate again the value of the
investigator asking follow-up, clarifying questions, although they are not required.
Clarifying questions help protect the rights of the suspect by
ensuring that he gets an attorney if he wants one, and will minimize
the chance of a confession being suppressed due to subsequent
judicial second-guessing as to the meaning of the suspect‟s
statement regarding counsel. But we decline to adopt a rule
requiring officers to ask clarifying questions.
Id. at 461, 114 S. Ct. at 2356, 129 L. Ed. 2d at 373; see State v. Harris, 741
N.W.2d 1, 7 (Iowa 2007) (finding a clear and unequivocal request after officer
asked, “You want to do it with a lawyer, is that what you‟re saying?”).
B. Voluntary Statements. The State contends we should reverse the
district court‟s suppression of the defendant‟s statements because they were
voluntary and because the district court did not distinguish between the
defendant‟s invocation of his right to counsel and when the interview became
coercive. The State argues that, even assuming the district court was correct in
determining the defendant‟s statements became involuntary at some point, the
district court did not clarify in its suppression order whether the statements
between the two “truly fatal flaws”2 could be used to impeach the defendant.
2
The court saw the fatal flaws as (1) the defendant asked for an attorney, and the
questioning did not cease and (2) the officers made improper promises of leniency.
14
The warnings3 set forth in Miranda protect a suspect‟s Fifth Amendment
right against self-incrimination “ensuring that a suspect knows that he may
choose not to talk to law enforcement officers, to talk only with counsel present,
or to discontinue talking at any time.” Colorado v. Spring, 479 U.S. 564, 574, 107
S. Ct. 851, 857, 93 L. Ed. 2d 954, 966 (1987). For the defendant‟s statements to
be admissible, the State must show he “was adequately informed of his Miranda
rights, understood them, and knowingly and intelligently waived them.” State v.
Ortiz, 766 N.W.2d 244, 249 (Iowa 2009). “Only if the totality of the circumstances
surrounding the interrogation reveal both an uncoerced choice and the requisite
level of comprehension may a court properly conclude that the Miranda rights
have been waived.” Spring, 479 U.S. at 573, 107 S. Ct. at 857, 93 L. Ed. 2d at
965 (citation omitted).
Waiver. From our review of the videotaped interrogation, we conclude the
defendant‟s statements after he was advised of his rights at the beginning of the
interrogation do not indicate a knowing and intelligent waiver of those rights. See
Ortiz, 766 N.W.2d at 249 (requiring the State to prove defendant “was adequately
informed of his Miranda rights, understood them, and knowingly and intelligently
waived them”).
“[W]hen an accused has invoked his right to have counsel
present during custodial interrogation, a valid waiver of that right cannot be
established by showing only that he responded to further police-initiated custodial
interrogation even if he has been advised of his rights.” Edwards v. Arizona, 451
3
See Miranda, 384 U.S. at 469-70, 86 S. Ct. at 1625-26, 16 L. Ed. 2d at 722 (holding a
person subject to custodial interrogation must be advised that “he has a right to remain
silent, that any statement he does make may be used as evidence against him, and that
he has a right to the presence of an attorney, either retained or appointed”).
15
U.S. 477, 484, 101 S. Ct. 1880, 1884-85, 68 L. Ed. 2d 378, 386 (1981). In other
words, “an accused, . . . having expressed his desire to deal with the police only
through counsel, is not subject to further interrogation by the authorities until
counsel has been made available to him, unless the accused himself initiates
further communication, exchanges, or conversations with the police.” Id. at 48485, 101 S. Ct. at 1885, 68 L. Ed. 2d at 386 (emphasis added); see also Harris,
741 N.W.2d at 6. The defendant did not initiate further communication. It was
the investigators who did. Bringman encouraged the defendant to give his side
of the story because the investigators just “wanted to verify what happened.”
The defendant‟s response was, “Um-hum, I understand.
Kind of your job”.
Considering that the defendant was unfamiliar with the nature of the interview—
that it was not concerning his employment or the employment of the complaining
witness, that he did not understand the rights he would be waiving and the
consequences of that waiver, this statement cannot be understood as a waiver of
the rights defendant just reasserted.
Voluntariness. Even if the State fails to demonstrate a defendant‟s waiver
was knowing, intelligent, and voluntary, a defendant‟s statements may be
admissible to impeach the defendant. Harris v. New York, 401 U.S. 222, 226, 91
S. Ct. 643, 646, 28 L. Ed. 2d 1, 5 (1971); State v. Davis, 446 N.W.2d 785, 788
(Iowa 1989). However, the State must show by a preponderance of the evidence
that a defendant‟s statements were voluntarily. Ortiz, 766 N.W.2d at 249; State
v. Countryman, 572 N.W.2d 553, 558 (Iowa 1997). In determining voluntariness,
we employ a totality-of-circumstances test: “it must appear the statements were
16
the product of „an essentially free and unconstrained choice, made by the
defendant whose will was not overborne or whose capacity for self-determination
was not critically impaired.‟” Countryman, 572 N.W.2d at 558 (quoting State v.
Payton, 481 N.W.2d 325, 328 (Iowa 1992)). The relevant considerations include:
The defendant‟s knowledge and waiver of his Miranda rights, the
defendant‟s age, experience, prior record, level of education and
intelligence, the length of time the defendant is detained and
interrogated, whether physical punishment is used, including the
deprivation of food or sleep, the defendant‟s ability to understand
the questions, the defendant‟s physical and emotional condition
and his reactions to the interrogation, whether any deceit or
improper promises were used in gaining the admission, and any
mental weakness the defendant may possess.
State v. Morgan, 559 N.W.2d 603, 608 (Iowa 1997) (citation omitted). We also
may consider a defendant‟s alienage and unfamiliarity with our legal system.
See State v. Hajtic, 724 N.W.2d 449, 454 (Iowa 2006).
The State urges that the totality of the circumstances demonstrate the
defendant‟s statements were the product of a free and unconstrained choice,
made when his will was not overborne nor his capacity for self-determination
critically impaired. See Countryman, 572 N.W.2d at 558. The State asserts the
defendant understands and speaks English well, is well-educated and intelligent,
has been in the United States for nearly ten years, understands his rights and the
American legal system, and willingly chose to deal with the police unassisted. It
also asserts the length of the interview was not excessive and no physical
punishment or deprivation of food or sleep was employed. See id. (three-hour
interview); State v. Brown, 341 N.W.2d 10, 16 (Iowa 1983) (two-and-a-half hour
interview).
17
We agree with the State that the defendant is intelligent, well-educated
and has been in the United States for nearly ten years. We also acknowledge
that the length of the interview was not excessive and no physical punishment or
deprivation was employed.
From our review of the totality of the circumstances as revealed in the
audiotaped interview on July 10 and the videotaped interrogation on July 15,
however, we like the district court, conclude the defendant‟s statements for at
least part of the videotaped session were not voluntary.4
In reaching this
conclusion we have considered the defendant‟s experience, prior record, ability
to understand the questions and to communicate his responses understandably,
his alienage, his unfamiliarity with our legal system, his emotional condition, his
statement he did not want to talk to the officers, his request for a representative,
and his statements that indicate he was trying to give the officers the answers
they wanted to hear or to agree with their version of the events. Furthermore, the
defendant clearly did not understand the criminal nature of the interrogation. He
believed it was related to his employment or the employment of the complaining
witness. He also indicated this was “basically first time to talk to any police
person.”
4
Considering the defendant‟s unfamiliarity with our legal system, his inability to
understand the questions and the criminal nature of the questioning, statements such as
the following in the July 10 interview cause us concern, but do not necessarily rise to the
level that the defendant‟s statements after that point in the interview were involuntary:
Meyer: Okay. But first we just need you to say, “I got upset and I hit her. I
shouldn‟t have done it. It won‟t happen again.” (Emphasis added).
Defendant: I don‟t know what kind of answer you look for.
18
In the July 15 interrogation, just moments after telling the defendant,
“Here, wait just a second,” and then starting the questions about sexual touching,
the defendant indicated he did not want to talk to the officers about it.
Q. We have heard information that there was more going on
in your lab and in your office between you and her as far as
touching. We just want to know what the truth is. Do you want to
talk to us about it? A. No, actually—so—
The officers ignored his answer and continued the questioning. The defendant is
visibly distraught. He tells the officers he is upset. Officer Meyer then misleads
the defendant about the serious criminal consequences of an admission: “I mean
if you touched her breasts, it’s, hey, no big deal.” (Emphasis added). For the
next several interchanges, the defendant tries to answer or to ask a question, but
Officer Bringman interrupts and pressures the defendant. Just moments later the
defendant makes his request for a representative.
We conclude the defendant clearly expressed his desire not to talk to the
officers without a “representative.” All of his statements after that point should be
suppressed as involuntary.
We affirm the district court ruling that all of the
defendant‟s statements after page forty-two, line twenty of the transcript of the
July 15 interrogation, where defendant expressed his desire for a representative,
are suppressed as involuntary and may not be used for any purpose at trial.
AFFIRMED.
